Gaslight & Coke Co. of New Albany v. City of New Albany

• Decision Date: 08 January 1901
• Citation: 59 N.E. 176,156 Ind. 406
• Court: Indiana Supreme Court
• Parties: GASLIGHT & COKE CO. OF NEW ALBANY v. CITY OF NEW ALBANY.

156 Ind. 406

59 N.E. 176

GASLIGHT & COKE CO. OF NEW ALBANY

v.CITY OF NEW ALBANY.¹

Supreme Court of Indiana.

Jan. 8, 1901.

Appeal from circuit court, Clark county; Jacob Herter, Judge.

Action by the Gaslight & Coke Company of New Albany against the city of New Albany for damages resulting from the failure of the city to maintain certain lights according to a contract. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals. Affirmed.

Henry M. Dowling, for appellant. George H. Hester and M. Z. Stannard, for appellee

HADLEY, J.

On March 22, 1870, the city of New Albany by an ordinance granted the Gaslight & Coke Company a franchise to occupy the streets for the purpose of furnishingthe city and its inhabitants with gas for the term of 20 years from and after April 7, 1871. The ordinance provided that the gas company should furnish good, pure gas for all the public lamps of the city, and light, extinguish, and keep the same in good repair, for the price of $18 per annum for each lamp, the posts and lamps to be furnished by the city, and that the charge for gas furnished the city and its inhabitants should not exceed three dollars for each one thousand cubic feet; “provided, * * * that the common council of said city shall have the right at all times to regulate the time of lighting and extinguishing of the street lamps and of determining the quantity of gas to be consumed by said city.” Section 9 was as follows: “At the expiration of the said term of twenty years from and after the said 7th day of April, 1871, the common council of said city will either purchase from said gas company their gas works, pipes, meters and other property at a fair and reasonable value thereof, at that time, or grant them the same right and privileges as contained in this ordinance for another term of not less than twenty years, but subject, however, to such other reasonable conditions, limitations and restrictions as the interests of said city and of her citizens may at that time require.” The gas company accepted the terms of the ordinance, and expended a large sum of money in the purchase and construction of its plant. Both the parties proceeded to act under the ordinance contract. “On March 19, 1888,” the complaint continues, “while the contract aforesaid was in full force, and yet had three years to run, the city, by its common council, by a supplemental ordinance, * * * in consideration of the reduction of the price of gas to consumers, including the city (except as to public lamps), and for the purpose of carrying out its agreement to extend said contract in lieu of purchasing said gas plant, proposed and agreed to and with the plaintiff [gas company] that all the rights and privileges, duties and obligations, held, enjoyed, and owing by the said gas company, under and by virtue of said ordinance passed March 22, 1870, and under and by virtue of the said contract and agreement then subsisting between said company and the city, subject to the modifications in said ordinance of March 19, 1888, should be, and the same were, extended and continued in force for the term of twenty-three years from and after said 7th day of April, 1888.” The first section of the ordinance of March 19, 1888, provided for the extension of the company's franchise for the term of 23 years from April 7, 1888, with all the rights and privileges, etc., enjoyed and owing by the gas company under the ordinance of 1870, as alleged in that part of the complaint above quoted. The second section provided for the price of gas to consumers to be from $2.10 to $1.50 per 1,000 cubic feet, according to amount consumed and time of payment, the city to have the gas received by meter measurement at the minimum price, and to pay $18 per annum for each public lamp. By subsequent sections it was provided that the “city agrees to keep in service all public lamps heretofore maintained,” and to erect and keep in service three additional lamps for every 260 feet of gas main extension, and prescribing the times when the same should be lighted and extinguished. The gas company accepted the terms of the ordinance of 1888, and both the company and city proceeded to act under it, and the company has expended a large sum of money in laying mains and in extending its facilities for manufacturing and furnishing gas, and has, since March, 1888, furnished gas to the city and all other consumers for a less price than it was permitted to charge under the ordinance of 1870. Prior to January 1, 1892, the city had established 84 public lamps in the city which were embraced in said agreement. Since January 1, 1892, the gas company has been prepared, ready, and willing to supply all the public lamps with gas under the terms of the ordinance and agreement, but the city has, since said last date, wrongfully refused to use the public lamps, and prevented the company from lighting the same, and refused to receive gas and pay for the same, to the damage of the company. To a complaint alleging the foregoing the court sustained a demurrer for insufficiency of facts, which action of the court presents the only question we are called upon to decide.

To exhibit an action ex contractu for damages, appellant, as plaintiff, must show the existence of a valid contract with appellee that has been broken; that is, a contract which not only imposes upon appellee the obligation to receive gas from appellant, but receive it in such definite quantity as will make the damages for refusal to receive ascertainable with reasonable certainty. 1 Sedg. Dam. (8th Ed.) § 170. We look in vain to the provisions of the ordinance of March 22, 1870, for any semblance of a stipulation on behalf of the city to maintain any number of public lamps or to take any quantity of the company's gas. The only references to the subject in the ordinance of 1870 are as follows: The right is granted the company to lay its pipes through the streets of the city “for the conveyance of gas in and through the city for the use of said city and its inhabitants.” The company shall furnish “good, pure gas for all the public lamps of the city, and light, extinguish and keep the same in good repair,” at a fixed price per annum for each lamp. “The price at which said company shall furnish the city and its inhabitants with gas shall not exceed” a named price; “provided the city orders shall be received at par in payment for all gas furnished the city by said company, and that the common council of said city shall have the right at all times to regulate the times of lighting and extinguishing the street lamps, and of determining the quantity of gas to be consumed by said city.” It is manifest from these provisions that the city, with respect to the purchase of gas, assumed no absolute obligation, but reserved to itself the rights of an inhabitant of the city to take or not take gas as its common council might, from time to time,...